PARTIES. PARTIES IN CHANCERY. Continued.

they had any, but also their respective portions which they took by
inheritance from the deceased infant. Lynch et al. v. Rotan et al. 15.

18. In suit for specific performance. See CHANCERY, 32.

19.

Who may bring suit to remove a cloud from the title to realty of an intest
ate. See ADMINISTRATION OF ESTATES, 8, 9.

WANT OF PROPER PARTIES IN CHANCERY.

20. At what time the objection may be taken. See PRACTICE, 10, 11.

PARTNERSHIP.

LIABILITY OF ONE PARTNER TO ANOTHER.

1. Where one partner has the exclusive management. Where a partner
had received partnership property, and by the terms of the partnership was
intrusted with its custody, management and disposal, he must be charged
with its value, and to discharge himself he must account for its disposition,
and what he has done with the proceeds. Laswell v. Robbins, 209.

2. Rule is general. It seems that this rule prevails in all trials involv-
ing the adjustment of accounts, whether for the sale of goods and chattels
or otherwise. Ibid. 209.

3. In such case the one partner only has to show that the other pur-
chased or received the property and its value, and the presumption then
arises that he is liable; and he to discharge himself must show payment,
set-off or some other legal defense. Ibid. 209.

MINGLING THE PROPERTY OF PARTNERS.

4. Presumptions-evidence. Where L. had entered into the business of
raising, buying and selling stock, in partnership with R., on the farm
where L. resided, and there being no provision in the partnership articles
to commingle the stock of L. with that of the firm, this court cannot pre-
sume that he did so; and if he did place his own stock on the farm, to
overcome the presumption that it became partnership property would
require the clearest and most satisfactory proof. Ibid. 209.
OWNERSHIP OF PROPERTY.

5. Partnership being ended. The presumption would be, until rebutted,
that the property at the termination of a partnership belonged to the firm,
and, if so, and one partner appropriates it to his own use he must account
for it in the settlement of the affairs of the partnership. Ibid. 209.
VALUE OF PROPERTY IN SUCH CASE.

6. How estimated. In such a case it seems that the proper way would
be to call upon neighbors to make an inventory, and fix the value of the
property so taken. Ibid. 209.

7. And where, in such case, the partner having custody of partnership
property appropriates it to his own use, without preserving any evidence
as to its value, the other partner must establish his claims in the best
mode he can, and if in doing so, as he has to prove facts from which pre-
sumptions have to be indulged, which the wrong-doing partner may think
overcharges him, such wrong-doing partner will have no right to com-
plain because he has failed to provide and preserve the evidence which it
was his duty to have obtained. Ibid. 209.

PARTNERSHIP. Continued.

IN CASE OF THE DEATH OF ONE PARTNER.

8. Of the relative rights and duties of administrator of a deceased partner
and the survivor. Primarily, the administrator of a deceased partner has
nothing to do with either the partnership assets or the partnership debts.
Miller et al. v. Jones, 54.

9. The surviving partners take the exclusive legal title to the former
for the payment of the latter. If any assets remain in their hands, after
payment of all liabilities, they should account to the administrator for the
distributive share of the deceased, which then becomes, for the first time,
assets in his hands as administrator. Ibid. 54.

10. Remedy for an account against a surviving partner. If, however, there
is an unreasonable delay on the part of the surviving partners in closing
the affairs of the partnership, or if they are wasting the partnership prop-
erty, it is then the right and duty of the administrator, if the partnership
creditors remain inactive, to file a bill, calling the survivors to account,
and praying for an appointment of a receiver, and the complete adjustment
of the partnership affairs. Ibid. 54.

11. In this case, the deceased partner died in October, 1858, and his
administrator filed his bill against the survivors for an account in May,
1860, alleging they had not closed the affairs of the partnership, and the
delay was considered sufficient to justify the filing of the bill. Ibid. 54.

12. Although there may be such delay on the part of the survivors, in
closing the partnership affairs, as would justify the filing of a bill by the
administrator of a deceased partner for the purpose of a settlement, yet, in
the absence of any proof of bad faith, or such degree of negligence as
would charge the survivors personally for partnership property sold by
them, the administrator could only require them to account personally
for the actual proceeds of the sale. The debts due for the unpaid sales
would pass to the receiver, to be collected by him. Ibid. 54.

13. Surviving partners cannot be required to pay to the administrator
of a deceased partner their proportion of partnership debts allowed against
the estate, unless it appears the administrator has paid such debts. Ibid. 54.

14. Who may be receiver. In a case where the administrator of a
deceased partner may file a bill against the surviving partner, and have a
receiver appointed, the administrator himself, if a proper person, may be
made receiver, but, in that event, the court should require him to give a
new bond as such. Ibid. 54.

ONE PARTNER SUING ANOTHER.

15. Jurisdiction in chancery in suit between two partnership firms, where one
person is a member of both. See CHANCERY, 8, 9.

PAUPERS.

BRINGING A PAUPER INTO A COUNTY.

1. There was a prosecution under the sixteenth section of the chapter
of the Revised Statutes, entitled "Paupers," for bringing a pauper into
Franklin county, wherein he was not lawfully settled, knowing him to be

PAUPERS. BRINGING A PAUPER INTO A COUNTY.

Continued.

a pauper. There is no question in the case, except one of fact, whether the
defendant knew the person to be a pauper. Williams v. Franklin County, 21.

PAYMENT.

VOLUNTARY PAYMENT.

1. What constitutes. Where the maker of a note, which was alleged to
have been given upon a usurious consideration, delivered to the holder
certain collaterals which the latter was to collect and apply upon the
notes, the money collected upon such collaterals was regarded as having
been voluntarily paid by the maker upon the note. Carter v. Moses, 539.
APPLICATION OF PAYMENTS.

2. When an express company delivered goods to a consignee, which
were required to be paid for before delivery, receiving only part payment,
but remitted the portion so paid to the consignor, the consignor has no
right to apply such payment on other indebtedness due him from the con-
signee, but must credit it to the company. American Express Company v.
Lesem et al. 312.

PAYING OFF AN INCUMBRANCE.

3. By a purchaser — applied as a payment on the purchase-money. Seo
VENDOR AND PURCHASER, 1.

PENALTIES.

WHETHER RELIEVED AGAINST, IN CHANCERY. See CHANCERY, 24.

PERSONAL PROPERTY.

WHAT CONSTITUTES.

Whether fruit-trees and ornamental shrubbery in a nursery are personal prop-
erty. See CONVEYANCES, 4.

PLEADING.

OF THE DECLARATION.

1. Declaration for money out of a public fund. When a party seeks to
draw money from a public fund, under the provisions of a law controlling
its disbursement, he must by the necessary averments, bring his case within
its provisions. Botkin et al. v. Osborne, 101.

2. Declaration by a teacher against school directors. In an action by a
teacher against the school directors, under the act of 1857, the declaration
must aver that the proper certificate of qualification was exhibited to the
board of directors prior to his employment, or the action will fail. The
omission to make such an averment, will not be cured by the verdict.
Ibid. 101.

3. May state the contract in terms or in substance. The declaration is
always sufficiently definite when it states the contract in terms or in sub-
stance. So, where the various counts averred an agreement to sell sixty
head of cattle, to be selected from a lot of eighty, the declaration was held
sufficiently definite, as it was proved by the evidence, and as the evidence
did not show that any number of pounds was sold. White v. Thomas, 227
44-39TH ILL.

PLEADING. Continued.

AVERRING THE MEANING OF LETTERS.

4. As used in a particular trade or business. See PLEADING AND
EVIDENCE, 3.

DESCRIPTION OF PARTIES.

5. In suit against school directors.

Where a suit was instituted against
the individual directors of a school-district, but described them as a body
politic and corporate, and also gave their corporate name; held, that
such action was not improperly brought. In such case, the individual
names are regarded as surplusage. Botkin et al. v. Osborne, 102.

6. In a suit by a town. Where an action under a penal statute was
commenced in the name of " A. L." and others, "commissioners of high-
ways of the town of Waynesville," and should have been in the name of
"The town of Waynesville," and the Circuit Court, on motion, allowed
the plaintiff to amend by striking out all the superfluous words, held, not
to be error. Yocum v. The town of Waynesville, 220.

AVERMENT OF CONSIDERATION.

7. What is sufficient. In an action upon a guaranty, where the entire
instrument, which recites that it was made in consideration of the assign-
ment of a judgment to the guarantor, is set out in the declaration, that is
as clear an averment that a consideration was given to support it as if
such an averment was formally made. Dickerson v. Derrickson, 574.
WHERE A CONTRACT IS NOT MADE IN THE TRUE NAME.

8. Averment in respect thereto. When a contract is made by a corpora
tion by a name varying from the true name, it may be sued in its true
name, the plaintiff averring in his declaration that the defendant made
the contract by the name mentioned therein. This is the usual and formal
mode of declaring on such contracts. Board of Education v. Greenebaum &
Sons, 610.

ALLEGATION OF AUTHORITY OF AN AGENT.

9. What is sufficient. In a petition against the board of education of
this State, to enforce a mechanic's lien, it was alleged that the contract
was executed on the part of the board by certain persons named, who
were the building committee of the board, and who had full authority to
make the contract. This was a sufficient allegation that the persons who
signed the contract were authorized to do so. Ibid. 609.

ONE GOOD COUNT SUFFICIENT.

10. Where there is one good count sustained by the proof, the court
must enter a judgment on that count, without regard to those that are
faulty. Dickerson v. Derrickson, 575.

WHERE A COUNT COMBINES A GOOD AND A DEFECTIVE.

11. Cause of action. In an action on the case two distinct grounds of
injury were alleged in each of the counts in the declaration, upon one of
which grounds a right of action might arise, but upon the other no recov-
ery could be had, and proof was given respecting both of them. A verdict
for the plaintiff was not allowed to stand because the two alleged grounds
of complaint were so coupled together that it was impossible to know

PLEADING.

WHERE A COUNT COMBINES A GOOD AND A DEFECTIVE.

for which alleged injury the verdict was found.
Coke Co. v. Thompson, 599.

PLEA OF DURESS.

Continued.

Ottawa Gas-light and

12. Its requisites, when pleaded to a scire facias on a recognizance. When
the scire facias on a recognizance, shows the principal was indicted, that
the court ordered him to be held to bail, and that he was in the lawful
control of the sheriff for that purpose, a plea of duress of the principal,
which does not show that such imprisonment was unlawful, is bad.
Huggins et al. v. The People, 241.

PLEA MUST TRAVERSE OR CONFESS AND AVOID.

13. A plea which neither denies any material allegation in the declara-
tion, nor confesses and avoids, is technically bad on demurrer. Landis et
al. v. The People, 79.

14. Applied to a plea to a sci. fa. on recognizance. So, where a scire
Jacias upon a recognizance shows that the term of court at which the
principal cognizor was to appear was not held, and that a forfeiture was
entered at the succeding term, a plea to the scire facias, in which the
ureties alleged that their principal did appear at the term which was not
held, and did abide by all the orders of the court made at said term was
technically bad, as it neither denied any material averment in the scire
facias, nor was it a plea of confession and avoidance. Ibid. 79.
CARRYING DEMURRER BACK TO A FORMER PLEADING.

15. A demurrer to a pleading cannot be carried back to another which
the pleading demurred to does not profess to answer and with which it
has no connection. Hunter, Admr., v. Bilyeu, 367.

16. So a demurrer to a replication to one of two pleas, cannot be carried
back to the plea which remains unanswered. Ibid. 367.

JUDGMENT ON PLEA NOT ANSWERED.

17. When allowable. A demurrer to two special pleas, being overruled,
was withdrawn, and a replication filed to one of the pleas only. Held, that
the defendant was entitled to judgment on the plea not replied to. By
withdrawing his demurrer the plaintiff lost his right to insist upon it.
Ibid. 367.

OF THE ORDER OF PROCEEDINGS.

18. Within what time certain objections must be taken. See PRAC
TICE, 9 to 17.

PLEADING AND EVIDENCE.

VARIANCE IN NAMES.

1. Of the "Jr." Where the declaration described the note sued on as
made by "Samuel Headley," and the note offered in evidence was signed
"Samuel Headley, Jr.;" held, that this was no variance. "Jr." added to a
person's name is no part of the name. Headley v. Shaw, 354.
MIDDLE LETTER IN A NAME.

2. No part of the name. See NAMES, 3.